Court reputation rides on Obamacare

Posted: Friday, March 23, 2012 7:00 pm

By DOUGLAS COHN
and ELEANOR CLIFT
WASHINGTON — With the Supreme Court poised to hear oral arguments on the fate of the Affordable Care Act, there is more at stake than President Obama’s signature accomplishment. The presidential election could well turn on the outcome of the case, though it can’t be certain in whose favor. The Court itself is also on trial and whether it can overcome the taint of partisanship associated with its 2000 ruling in Bush v Gore that decided that year’s presidential election in a 5-4 vote.
It’s widely assumed that the four justices appointed by Democratic presidents will affirm the law’s constitutionality, which means advocates need just one more justice to reach a majority.  Justice Anthony Kennedy is the Court’s lone swing vote, and he could go either way.
A 5 to 4 decision knocking down the law rendered by the Court’s four conservative justices plus Kennedy, all Republican appointees, would reinforce the Court’s image as a political body, undermining the Court’s moral authority along with Chief Justice Roberts’ legacy. For the Court to have legitimacy in declaring the law unconstitutional, along with its mandate that everybody buy health insurance or pay a penalty, Roberts would have to muster a bigger majority than the five.
Roberts is reportedly very sensitive to the lingering image that the Court is divided along political lines, and that the partisan division dictates Court rulings. Constitutional scholars present convincing arguments on both sides of the health insurance case, so let’s assume for the sake of speculation, that Roberts sees merit in upholding the constitutionality of the Affordable Care Act.
If Roberts decided to side with the four liberal justices, that would surely bring along Kennedy and maybe even Justice Scalia, who surprises conservatives every so often by taking a stand they didn’t expect. That would make the ruling 7 to 2, isolating the two most conservative justices, Clarence Thomas and Samuel Alito. That convincing majority would put to bed the election-year debate over the health care law, and let President Obama and his likely challenger, Mitt Romney, explore their differing approaches to the economy, and the role of government, without getting caught in the weeds of health-care reform.
If on the other hand we get a narrow 5-4 ruling knocking down the mandate, the Roberts Court should be prepared for a boatload of criticism. This is not just about any ordinary law. Critics have derided it as Obamacare, but Obama has lately decided to embrace the term, interpreting it as meaning that he cares about the health care of Americans, and implying that his political opponents don’t.
Republicans like the phrase “repeal and replace,” but they’ve talked very little about what they would replace the Affordable Care Act with should it be overturned. It would mean back to square one on Capitol Hill trying to forge a new plan, which would face all the problems Obama had, and then some.
This Court fight is not just about health care. Obamacare is of such magnitude, and has such significance for the lives of Americans, that to overthrow it would create pandemonium. It’s not perfect by any means, but it puts in place the building blocks for the universal health care presidents sought going back to Teddy Roosevelt and Harry Truman and continuing on with John F. Kennedy and Bill Clinton.
Once it is fully implemented in 2014, it will be an essential part of the safety net, and to cut it short would be the equivalent of declaring Medicare or Social Security unconstitutional when those programs were in their infancy. As Roberts presses forward with this controversial case in the midst of an election, he must decide whether he is a Chief Justice or a Republican; the two may not be compatible. Published in The Messenger 3.26.12